by Marzena Czarnecka

Illustration Christian Rosekat

Here’s the deal: I know you’re not Shell. Nor Suncor.

You don’t have a single oil sands operation, and you’ve never even drilled a well. You’re pretty sure there’s nothing you do that ever endangers the lives of ducks – well, except when you go to Chinatown … but back to the point: I know you’re not one of the big guys. But that doesn’t mean you don’t have environmental issues to stay on top of. And that means you need to have an environmental policy.

Do you?

If your business has aspects that fall within the purview of either the provincial or national regulator, you probably have something. Somewhere. A checklist? Um … a document appended to your occupational health and safety policy? You’ve got that, right?

Stop shuddering. I know, baby, you’re an entrepreneur, not a paper pusher, and all these policies, manuals and checklists are driving you mad– forms, forms, forms – you want to build, sell, explore, service, grow your business and make-money-fer-godssake, not fill out another form, prep another manual. Give me five minutes to explain to you why you need this one, and at the end, I’ll show you how to outsource it. Deal? And I promise it has nothing to do with how trees have souls and ducks have rights. It’s all going to be about hard-core business logistics. Cross my heart.

OK, point one: while you’ve been busy growing your business, the regulators and environmental overseers have been busy growing their scope and clout. “The expansion of almost any company’s environmental duties and obligation has increased, as have the penalties for environmental non-compliance,” says David Farmer, an environmental lawyer with Borden Ladner Gervais. Personal responsibility and liability for non-compliance is greater as well, and on a trajectory to be even greater still. Worse, you can’t hide behind “the corporation” anymore. “It’s not just the company that bears responsibility for repeated infractions,” Farmer warns. “Under certain factual circumstances, directors and senior level management can be held personally liable for their company’s actions – or non-actions.” In case you didn’t know this already: personally liability majorly sucks and you need to avoid it at all costs. “It’s a harsh legal reality, but it’s pretty simple, really,” says Farmer. “Avoiding penalties and liabilities starts with being proactive and having policies and systems in place.”

“Having environmental and workplace policies and procedures in place actually does lower the risk that you’re going to have an incident.” – Martin Ignasiak, Osler, Hoskin & Harcourt

Sold? Wait, I’ve got more – although frankly, just ensuring you’re not personally liable should be enough of an argument for you. Just saying. But moving on: “Having environmental and workplace policies and procedures in place actually does lower the risk that you’re going to have an incident,” says Martin Ignasiak, an environmental and regulatory lawyer with Osler, Hoskin & Harcourt. See, just by the act of sitting down and figuring out what can go wrong, systematically addressing how to keep things from going wrong and having a plan in place that you can launch when things do go wrong (and they will; it’s an unavoidable karmic thing), you create an aware workplace environment in which machines are less likely to squish people and chemicals are less likely to spill into water sources. And when those incidents do occur, you respond to them more quickly and more effectively, minimizing the damage.

I’m not even going to go into that whole social licence to operate thing: This stuff saves you money. Unless you’re living in a particularly effective media-free silo, you know the general social trend, even in this hydrocarbon-lovin’ economy, is towards greater environmental responsibility and stewardship. You’re either on that bandwagon or reluctantly eating the dust it’s throwing in your face. If it’s the former, well, I don’t need to sell you. If it’s the latter, another lecture won’t sell you.

You don’t care about reputational risk? Fine. But care about this: if you have no environmental policy or an inadequate environmental policy, you will pay more in insurance fees, Workers’ Compensation Board premiums and the like. Indeed, in certain incidents, your environmental policy – and whether you followed it or not – will determine whether the insurance policy will pay up or not. I dare you to wait until things go horribly wrong to find out how important a toothy environmental policy is to your insurer.

You’re bristling, because you think I’m painting you as an irresponsible operator, unaware of the hazards amongst which you work. Not at all. I know you’re responsible. That’s why you haven’t had a serious incident in, what, more than a decade. (Those guys across the street though, man! Imagine what their premiums are.) But in an environment of increased scrutiny and higher penalties, solid policies are the difference between a fine or reprimand that can be construed as a slap on the wrist (I’m assuming that if things go sideways, you want a slap on the wrist and not handcuffs, right? Right?) and one of those headline-grabbing “Record penalty handed out in Incident X” headlines. Ignasiak is unambiguous: “The existence of those policies and procedures, provided they are implemented and followed, can in some cases result in you being able to mount a defence of due diligence, which would mean that instead of being convicted of an offence you are going to be acquitted.” The only thing better than being acquitted, of course, is not being charged in the first place … which is another thing following your environmental policy should help you accomplish.

So I can tell I’ve almost got you. You’re going to look over that environmental policies and procedures binder – or start one – and make sure you have your behind covered. But what? Why the long face? Oh, I know. The work. The forms. The paper. It’s not that hard, honest. Look, it starts really simply. Make a list. What do you do? What equipment and machines do you have? What do you use? Do that on a cocktail napkin or your smartphone. There. Done. Now, for each of those things, be the ultimate devil’s advocate. What can go wrong? What’s the absolute worst-case scenario? Do you have things that can squish, poison, leak, explode – go out of control? “Contemplate the worst-case scenario,” Farmer urges. Let your nightmares run rampant. And … go!

Note: don’t do this alone. A much better option would be over lunch with a colleague or the expert who’s going to draft your enviro mental policy. Now, what do you need to do to minimize the odds of any of those awful things happening? Write them down. Turn them into procedures.

Easy, eh? We’re almost done. Your expert might want to make the language all formal and falutin’, full of jargon and phrases pleasing to the regulator and courts, and it’s probably OK to let him do that. But get a version that’s written in plain old English the employee in the field and on the shop floor understands. And here comes the most important part – ready? Communicate the policies and procedures to your people. Not once. Not twice. ALL THE TIME. Several times a day. At every opportunity. This too can be the difference between an incident investigation making you look all sweet and shiny, or one that results in value-destroying penalties.

And when your people – in the office, in the field, wherever you operate – violate those policies? Come down on them, hard. Seriously. An unenforced policy is worthless. “If you have these policies, they have to be enforced,” Ignasiak says. “If someone isn’t following the policy, management has to make a point of pointing that out and taking corrective action. From a legal perspective, having a policy that is regularly contravened or not followed is a fatal flaw if you are ever trying to advance a defence of due diligence.”

Yeah. What he said.

I know. My five minutes are up. Did I sell you? Of course I did. And guess what? No ducks were harmed during the writing of this column.

Our experts recommend:

… that you get an expert’s help in drafting your environmental policy, particularly if your business operates in a regulated area. But if you want to get a head start on what the expert’s going to ask of you, spend some time on Alberta Environment and Sustainable Resource Development’s page of tools for environmental policy developers: environment.alberta.ca/01869.html